Hamilton v. Brown, 161 U.S. 256 (1896)

8/17/2019 Hamilton v. Brown, 161 U.S. 256 (1896)

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161 U.S. 256

16 S.Ct. 585

40 L.Ed. 691

HAMILTON et al.

v.

BROWN et al.

No. 241.

March 2, 1896.

This was an action brought, April 12, 1890, in the circuit court of the

United States for the Western district of Texas, by Joseph F. Hamilton, a

citizen of Missouri, Lewis Hamilton, and Mary A. Post, joined by her

husband, George Post, citizens of Illinois, Walter B. Hamilton, and

Elizabeth Fulton, joined by her husband, John G. Fulton, citizens of

Kansas, and John F. Hamilton, a citizen of Colorado, against J. T. Brown

and 25 others, all citizens of Texas, and living in the county of Fayette,

within the Western district of Texas, to recover land in that county.

The petition alleged that the land consisted of one league, described by

metes and bounds, granted to Walter F. Hamilton by the republic of

Mexico on April 30, 1831; that, on April 13, 1888, the plaintiffs were the

owners in fee simple of the land, and entitled to the possession thereof;

and that the defendants on that day unlawfully entered thereon and

dispossessed the plaintiffs, and had ever since withheld the possession

from them.

The defendants, in a supplemental answer, say: 'That plaintiffs ought not

to have or maintain this action against them, because they say that, on the

30th day of March, 1861, one Edward Colier, at that time the lawful

district attorney of what was then the First judicial district of Texas, acting

for and under authority of the state of Texas, filed in the name and by the

authority of the state of Texas a petition, and began a suit in the district

court of Fayette county, Texas, the object and purpose of which suit was

to have said district court of Fayette county declare and adjudge that theleague of land described in plaintiffs' petition in this suit had escheated to

the state of Texas, and to have the title to the same divested out of the said

Walter Hamilton and his heirs, and have it vested in the state of Texas.



That in said petition plaintiff alleged that Walter Hamilton, late a resident

of Fayette county, in said state, died on the ___ day of _____, _____,

intestate, and without heirs, and that no letters of administration have ever

been granted upon said decedent's estate in Fayette county, in which

succession should, according to law, have been opened; that said decedent

died seised and possessed of the league of land which is described in the

petition of plaintiffs in this suit, and which is fully described in said petition; that said Walter Hamilton was the last person seised and

possessed of said land; that there are no tenants upon said tract of land,

and no person is either in actual or constructive possession of said tract of

land, or any part thereof, nor is there any person, claiming the estate in

and to said tract of land, known to petitioner; that no person has paid the

taxes on said land or any part thereof; that the estate in and to said tract of

land has escheated to the state of Texas,—and praying for the grant of writ

of possession in and to said tract of land to said state. That afterwards, towit, on the 18th day of May, 1861, the said district court of Fayette

county, Texas, made an order in said suit, and caused it to be enrolled in

the minutes of the said court, commanding the publication for four

successive weeks, in a newspaper printed in the state of Texas, of a notice

setting forth the substance of the allegations of said petition, and requiring

all persons interested in the estate of said Walter Hamilton to appear and

show cause at the nextterm of said court why the said league of land

should not be vested in the state of Texas. That, pursuant thereto, a notice,setting forth at length said order, and the substance of said petition, was

issued by the clerk of said court, and published, as required by law, for

four successive weeks, in a weekly newspaper called the 'New Era,'

printed and published in La Grange, in Fayette county, Texas. That sundry

persons intervened in said suit, and set up claims to parts of said league of

land. That said suit was continued from term to term of said court, until

the July term thereof, in 1871, when there was a trial had, and judgment

entered there to the effect that the league of land in controversy in this suit

is escheated unto the state of Texas, and the title thereto is divested out of

the said Walter Hamilton and his heirs, and forever vested in the state of

Texas. A true and correct copy of said judgment, certified to under the

hand and seal of the clerk of the district court of Fayette county, Texas, is

hereto attached, and is made a part hereof.1 That said judgment has never

been reversed or vacated, but now remains in full force and effect. That,

by and because of said judgment, the said Walter Hamilton, and all

persons claiming through or under him, are estopped and barred of the

right to have or maintain this action for the recovery of said land.

'And these defendants further say that afterwards, to wit, on the 7th day of

August, 1872, pursuant to the commands of said judgment, the clerk of the



district court of Fayette county, Texas, issued and delivered to the sheriff

of Fayette county, Texas, an order of sale, commanding him to seize the

said league of land, and sell it in manner as directed in the said judgment,

and make disposition of the proceeds arising from the sale as provided

therein; that said land was so seized and sold by said sheriff, and that

these defendants, and those under whom they claim, became the

purchasers of the parts of said league claimed by them at such sale, paidthe amounts of their respective bids to the said sheriff, and received from

him deeds conveying the same to them; that for this reason, also, these

defendants say that said plaintiffs are estopped from and barred of the

right to have or maintain this action.'

The plaintiffs, by an amended supplemental petition, demurred generally

to this answer as insufficient in law, and also specially excepted to it as

follows:

(1) 'The escheat proceedings and final judgment obtained therein, set out

in defendants' said answer, were begun and prosecuted under and by virtue

of an act of the legislature of the state of Texas, entitled 'An act to provide

for vesting in the state escheated property,' passed March 20, 1848, there

being, at the date of the filing of said escheat proceedings, no other law or

statute authorizing escheats, which said act was repealed and annulled by

the constitution of the state of Texas of 1869, long prior to the date when

the escheat judgment, pleaded and relied upon by defendants to defeat

plaintiffs' title, was obtained, in this: that the law of 1848 (section 11)

provides that the sheriff of the proper county shall seize the real estate

escheated to the state, and sell the same in the manner therein provided,

while the constitution of 1869 (article 4, § 20) provides that the

comptroller of the state 'shall take charge of all escheated property, keep

an accurate account of all moneys paid into the treasury, and of all lands

escheated to the state,' which provisions are contradictory and conflicting.'

(2) If the act of 1848 was not repealed and annulled entirely, then section

11 thereof was repealed and annulled by that provision of the constitution

of 1869, 'and, there being no other provisions in said act by which

compensation is made to the heirs of the intestates whose property has

been escheated, the balance of the said act is not self-acting, and is one of

confiscation, and therefore in violation of the fifth amendment of the

constitution of the United States and section 14 of the bill of rights of the

constitution of 1869,' by which 'no person's property shall be taken or applied to public use without just compensation being made, unless by

consent of such person.' (3) The act of 1848, if not repealed by the

constitution of 1869, 'was and is in contravention and violation of section



10, art. 1, of the constitution of the United States of America, which

provides that 'no state shall pass any bill of attainder or law impairing the

obligation of contracts,' in that said law impairs the obligation of the

contract between the state of Texas and Walter F. Hamilton and his heirs

by virtue of the grant under which they hold said land, and seeks to forfeit

or confiscate the private property of said Hamilton (the land) by

appropriating it to the common fund without making due compensationtherefor.'

The court overruled the general demurrer and the special exceptions to the

answer, and, upon the plaintiffs declining to introduce any evidence to

support their cause of action, rendered judgment for the defendants.

The plaintiffs tendered and were allowed a bill of exceptions to the rulings

and judgment of the court, and sued out this writ of error.

H. E. Barnard, for plaintiffs in error.

S. R. Fisher, for defendants in error.

Mr. Justice GRAY, after stating the facts in the foregoing language,

delivered the opinion of the court.

1 This was an action to recover land in the county of Fayette and state of Texas.

2 The petition alleged that the land was granted in 1831 by the republic of

Mexico to Walter F. Hamilton, and that, on April 13, 1888, the plaintiffs were

the owners in fee simple, and entitled to the possession thereof, and the

defendants then ousted them.

3 The defendants, in their answer, relied on proceedings in escheat, commenced

in 1861, and in which judgment was rendered in 1871.

4 In those proceedings, as set forth in the answer, the attorney for the state

alleged that Walter Hamilton died, intestate and without heirs, seised and

possessed of this land, and that the estate in the land escheated to the state of

Texas. The court ordered publication of notice to all persons interested in the

estate of Walter Hamilton to appear and show cause why the land should not be

vested in the state. After due publication of the order of notice, sundry persons

intervened in the suit, and set up claims to parts of the land. The case was

continued from term to term, until July term, 1871, when a trial was had, and



judgment entered that the land 'be, and the same is hereby, declared escheated

unto the state of Texas, and the title is hereby divested out of the said Walter

Hamilton, his heirs and assigns, forever, and vested in the state of Texas.'

5 The answer alleged that that judgment had never been reversed or vacated, but

remained in full force, and that, because of such judgment, Walter Hamilton,

and all persons claiming through or under him, were estopped and barred of theright to maintain this action.

6 The answer further alleged that, in 1872, pursuant to the commands of that

judgment, the sheriff sold the land by auction, and the defendants and those

under whom they claimed became purchasers of parts of the land at such sale,

and paid the amounts of their respective bids to the sheriff, and received from

him deeds conveying the land to them, and that, for this reason also, the

plaintiffs were estopped and barred to maintain this action.

7 Although it is not directly stated, either in the petition or in the answer, that the

plaintiffs claimed the land as heirs of Walter Hamilton, or Walter F. Hamilton,

yet it is evident that it was so understood and intended. If the plaintiffs did not

claim in his right, then, on the one hand, the Mexican grant to him in 1831,

upon which they relied, both in the petition and in the exceptions to the answer,

was immaterial; and, on the other hand, neither the judgment in escheat in

1871, nor the sheriff's sale in 1872, set up in the answer, would meet the

allegation in the petition that the plaintiffs owned the land in 1888. And it is

assumed, in the briefs of both parties, that the Walter F. Hamilton named in the

petition and the Walter Hamilton named in the answer were the same person,

and that the question to be decided is whether the judgment in escheat, or the

sheriff's sale under that judgment, bars the plaintiffs claiming as his heirs.

8 By the law of England, before the Declaration of Independence, the lands of a

man dying intestate and without lawful heirs reverted by escheat to the king as

the sovereign lord; but the king's title was not complete without an actual entry

upon the land, or judicial proceedings to ascertain the want of heirs and

devisees. Attorney General v. Mercer, 8 App. Cas. 767, 772; 2 Bl. Comm. 245.

The usual form of proceeding for this purpose was by an inquisition or inquest

of office before a jury, which was had upon a commission out of the court of

chancery, but was really a proceeding at common law; and, if it resulted in

favor of the king, then, by virtue of ancient statutes, any one claiming title in

the lands might by leave of that court, file a traverse, in the nature of a plea or

defense to the king's claim, and not in the nature of an original suit. Lord

Somers, in The Bankers' Case, 14 How. State Tr. 1, 83; Ex parte Webster, 6

Ves. 809; Ex parte Gwydir, 4 Madd. 281; In re Parry, L. R. 2 Eq. 95; People v.



Cutting, 3 Johns. 1; Briggs v. Light-Boats, 11 Allen, 157, 172. The inquest of

office was a proceeding in rem. When there was a proper office found for the

king, that was notice to all persons who had claims to come in and assert them,

and, until so traversed, it was conclusive in the king's favor. Bayley, J., in Doe

v. Redfern, 12 East, 96, 103; 16 Vin. Abr. 86, pl. 1.

9 In this country, when the title to land fails for want of heirs and devisees, itescheats to the state as part of its common ownership, either by mere operation

of law, or upon an inquest of office, according to the law of the particular state.

4 Kent, Comm. 424; 3 Washb. Real Prop. (4th Ed.) 47, 48.

10 By the constitution of 1836 of the republic of Texas (article 4, § 13), it was

provided that the legislature should, 'as early as practicable, introduce, by

statute, the common law of England, with such modifications as our

circumstances, in their judgment, may require.' 2 Chart. & Const. 1757. And by

the statutes of Texas, from the time of its existence as an independent republic,

the common law of England, so far as not inconsistent with the constitution and

laws of Texas, has been declared to be, together with such constitution and

laws, the rule of decision, and to continue in force until altered or repealed by

the legislature. Tex. St. Jan. 20, 1840; Pasch. Dig. (4th Ed.) art 978; Rev. St.

1879, § 3128; Courand v. Vollmer, 31 Tex. 397; Barrett v. Kelly, Id. 476.

11 By the constitution of the state of Texas of 1845, it was provided, in article 4, §

10, that the district court should have original jurisdiction 'of all suits in behalf

of the state to recover penalties, forfeitures and escheats'; and in article 13, § 4,

as follows: 'All fines, penalties, forfeitures and escheats which have accrued to

the republic of Texas under the constitution and laws shall accrue to the state of

Texas; and the legislature shall by law provide a method for determining what

lands may have been forfeited or escheated.' 2 Chart. § Const. 1773, 1781.

12 By the settled course of decision in the supreme 0 How. 8, 21; Hancock v.

McKinney, escheat can be had, except under and according to an act of the

legislature. Jones v. McMasters, 20 How. 8, 21; Hancock v. Mckinney, 7 Tex.

384, 456; Wiederanders v. State, 64 Tex. 133.

13 The legislature, on March 20, 1848, passed a statute entitled 'An act to provide

for vesting in the state escheated property.' Gen. Laws Tex. 1847-48, c. 145, p.

210; Pasch. Dig. arts. 3657-3674.

14 By section 1 of that statute (Pasch. Dig. art. 3657), 'if any person die seized of

any real, or possessed of any personal estate, without any devise thereof, and



having no heirs, or where the owner of any real or personal estate shall be

absent for the term of seven years, and is not known to exist, such estate shall

escheat to and vest to the state.' The purpose and import of the second clause of

this section, concerning an owner absent for seven years and not known to

exist, have been declared by the supreme court of the state to be 'that proof of

absence of one who is not known to exist for the length of time mentioned is

presumptive evidence of his death. It is not, therefore, a ground for escheat of itself, but evidence of one of the elements of title by escheat.' Hughes v. State,

41 Tex. 10, 20. This is only important by way of explaining the scope of the

statute, since, in the present case both parties assume and rely upon the death of

the former owner.

15 By section 2 (article 3658), when no letters testamentary or of administration

appear to have been granted upon the estate of a person who has died without

heirs, it is made the duty of the district attorney to file in the district court of thecounty 'where such succession is required to be opened,'—which is as much as

to say, where his estate would be administered,—a petition setting forth 'a

description of the estate, the name of the person last lawfully seized or

possessed of the same, the names of the tenants, or persons in actual possession,

if any, and the names of the persons claiming the estate, if any such are known

to claim, and the facts and circumstances in consequence of which such estate

is claimed to have escheated; praying for a writ of possession for the same, in

behalf of the state.'

16 Section 3 (article 3659) requires scire facias to be issued to all persons named in

the petition as in possession of or claiming the estate, requiring them to appear

and show cause why it should not be vested in the state. Section 4 (article 3660)

further requires an order of notice to be published four weeks in a newspaper

printed within the state, stating briefly the contents of the petition, and

requiring 'all persons interested in the estate' to appear and show cause why it

should not be vested in the state. The order of notice by publication to all persons interested in the estate is essential to the jurisdiction of the court; and,

if no such notice is shown by the record, a judgment for the state will be

reversed on writ of error, even if sued out by parties who were named in the

petition, and appeared and pleaded in the cause. State v. Teulon, 41 Tex. 249;

Wiederanders v. State, 64 Tex. 133; Hanna v. State, 84 Tex. 664, 667, 19 S. W.

1008.

17 By section 5 (article 3661), 'all persons named in such petition as tenants or persons in actual possession or claimants of the estate,' may appear and plead,

and traverse the facts stated in the petition, or the title of the state; 'and any

other person claiming an interest in such estate may appear and be made a



defendant and plead, by motion for that purpose in open court.' By section 6

(article 3662), if no person, after notice as aforesaid, shall appear and plead,

judgment shall be rendered by default for the state. By section 7 (article 3663),

'if any person appear and deny the title set up by the state, or traverse any

material fact in the petition, issue shall be made up and tried as other issues of

fact.' By section 8 (article 3664), 'if after the issue and trial it appears, from the

facts found or admitted, that the state hath good title to the estate, real or personal, in the petition mentioned, or any part thereof, judgment shall be

rendered that the state shall be seized or possessed thereof, and, at the

discretion of the court, recover costs against the defendants.' By section 9

(article 3665), 'if it appear that the state hath no title in such estate, the

defendant shall recover his costs, to be taxed and certified by the clerk; and the

comptroller of public accounts shall, on such certificate being filed in his office,

issue a warrant therefor on the treasury of the state, which shall be paid as other

demands on the treasury.' And by section 10 (article 3666), 'when any judgmentshall be rendered that the state be seized or possessed of any estate, such

judgment shall contain a description thereof, and shall vest the title in the state.'

18 By section 11 (article 3667), 'a writ shall be issued to the sheriff of the proper

county, commanding him to seize such estate, vested in the state,' and 'he shall

dispose thereof at public auction, in the manner provided by law for the sale of

property under execution.' By section 12 (article 3668), a copy of the record and

account of sale, exemplified under the seal of the court, is required to bedeposited in the office of the comptroller of public accounts, and another copy

recorded in the office of the recorder of the county; 'and such record shall

preclude parties and privies thereto, their heirs and assigns.'

19 By section 13 (article 3669), 'any party who shall have appeared to any

proceeding, and the district attorney on behalf of the state, shall have the right

to prosecute an appeal or writ of error upon shch judgment.'

20 Section 14 (article 3670) requires that 'the comptroller shall keep just accounts

of all moneys paid into the treasury, and of all lands vested in the state, under

the provisions of this act.'

21 Sections 15 (article 3671) and 16 (article 3672) provide that, 'if any person

appear, after the death of the testator or intestate, and claim any money paid

into the treasury under this act,' as heir, devisee, or legatee, he may, by petition

in the district court for the county in which the estate was sold, and after notice

to the district attorney, and proof that the petitioner is an heir, devisee, legatee,

or legal representative, obtain an order directing the comptroller to issue his

warrant on the treasurer for payment thereof.



22 Section 17 (article 3673) simply relates to the duty of the district attorney to

obtain from the clerk of any probate court moneys or title papers to land, not

claimed by any heir, devisee, or legal representative of a deceased person.

23 By section 18 (article 3674), 'all property, escheated under the provisions of this

act, shall remain subject to the disposition of the state, as may hereafter be

prescribed by law.'

24 Sections 1770-1785 of the Revised Statutes of Texas of 1879 re-enact,

substantially and almost verbally, the provisions of the statute of 1848, except

by requiring the publication of the order of notice for eight weeks, instead of

four weeks, as in section 4, by omitting sections 12 and 17, and by inserting the

words, 'The proceeds of,' at the beginning of section 18.

25 These proceedings for the escheat of the estate of a deceased person for want of

heirs or devisees, like ordinary proceedings for the administration of his estate,

presuppose that he is dead. If he is still alive, the court is without jurisdiction,

and its proceedings are null and void, even in a collateral proceeding. Griffith v.

Frazier, 8 Cranch, 9, 23; Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108; Hall

v. Claiborne, 27 Tex. 217; Withers v. Patterson, 27 Tex. 491, 497; Martin v.

Robinson, 67 Tex. 368, 375, 3 S. W. 550; Caplen v. Compton, 5 Tex. Civ. App.

410, 27 S. W. 24. And if the death of the former owner, intestate and without

heirs, is not alleged in the petition, or is not proved at the trial, a judgment for

the state is erroneous, and reversible by appeal or writ of error. Hughes v. State,

41 Tex. 10; Wiederanders v. State, 64 Tex. 133; Hanna v. State, 84 Tex. 664,

19 S. W. 1008.

26 But the whole object in proceedings for escheat, as in proceedings of

administration, is to ascertain who are entitled to the estate of a deceased

person,—in proceedings of administration, to distribute the assets, after

payment of debts, among those who come forward and prove themselves to be

next of kin; in proceedings for escheat, to ascertain and determine, once for all,

so far as concerns the title in the land itself, whether the former owner left no

heirs or devisees, that being the single question on which depends the issue

whether or not the land has escheated to the state.

27 Consequently, when (as is admitted in the present case) the former owner was

dead, and, in the proceedings for escheat (as shown by the record on which thedefendants rely), the petition describes the land, gives the name of the former

owner, and alleges that he died intestate and without heirs; that no letters of

administration upon his estate had been granted; that there is no tenant or



person in actual or constructive possession of the land, nor any person, known

to the petitioner, claiming an estate therein; and that the land has escheated to

the state of Texas, and an order of notice to all persons interested in the estate

has been published, as required by the statute; and, after a hearing of all who

appear and plead, judgment is entered, describing the land, and declaring that it

has escheated to the state,—the judgment is conclusive evidence of the state's

title in the land, not only against any tenants or claimants having had actualnotice by scire facias, or having appeared and pleaded, but also against all other

persons interested in the estate, and having had constructive notice by

publication.

28 That such is the effect of the judgment in favor of the state is clearly shown by

the decision in Wiederanders v. State, above cited, in which the reasons for

holding that, if the notice required by the statute to all persons interested in the

estate had not been published, the court had no jurisdiction to enter judgment,even against persons who actually appeared and contested the claim of the

state, were stated by the court as follows:

29 'The purpose for which proceedings of this character are instituted is to have a

judicial declaration, in the form of a solemn judgment made by a court having

jurisdiction of the subject-matter and of the persons in interest, in so far as

publication can give it, that the facts exist which, under the law, cast title upon

the state to property which, at some former time (in case of lands), it hadclothed a person with title.'

30 'The law now in force must be deemed to be a law providing a method for

giving effect to escheats. Rev. St. 1770-1788.'

31 'We are of the opinion that the publication of notice, required by the statute, is

made necessary to the exercise of the general jurisdiction conferred, and that

without it the district court had no jurisdiction to try the case.

32 'The object of such a proceeding is not simply to have a decree declaring the

escheat, and vesting the title in the state, but, by and through process to be

issued under the judgment, to divest, not only the title of persons entitled to take

the property of the deceased as his heirs, if perchance any such there be, but

also, by a sale, to divest the title of the state, and to start, and confer upon the

purchaser, a new title, deraigned directly from the sovereign of the soil. Rev.St. 1777-1780.

33 'The proceeding, while not strictly a proceeding in rem, has many of its



characteristics; yet the statute does not direct a seizure of the thing, which, in

some cases, has been held to support a judgment strictly in rem. It applies to

personalty, as well as realty. The mere institution of the proceeding creates no

presumption that there is no one capable of taking the estate under the rules

regulating the descent of estates of deceased persons. The presumption is to the

contrary; and the effect of the judgment, if rendered after all persons interested

in the estate are notified of the pendency and purpose of the proceeding, in theonly manner in which they can be, if unknown, is to destroy that presumption,

and to make the title of the state clear.

34 'From the time the property is sold under a valid decree, the claim of the person

who might have taken it as heir, devisee, or legatee is against the proceeds of

the property, which must be paid into the state treasury (Rev. St. 1780-1785),

and to recover even that he is driven to a suit.

35 'It certainly is not the intention that the purchaser of escheated lands shall be

subjected to the peril of losing them after they have been regularly escheated

and sold, if an heir, devisee, or legatee shall subsequently make claim; nor that

personalty, which, from day to day, changes hands, shall be subject to the claim

of such persons, however valid such claim may have been, if asserted in proper

time and place. Yet such results would follow if the jurisdiction of the court is

not so brought into exercise, by a substantial compliance with the requisites of

the statute, as to clothe it with power, by its judgment, to conclusively settle thetitle to the property as against all persons.' 64 Tex. 135-138.

36 The like opinion was expressed by Chief Justice Shaw upon the effect of

proceedings under a similar statute of Massachusetts, in a case in which it was

held that a conveyance of real estate of a citizen dying intestate and without

heirs could not be made by the commonwealth until the rendition of judgment

in its favor upon an inquest of office. The chief justice said: 'Where a subject

dies intestate, as the estate descends to collateral kindred indefinitely, the

presumption of law is that he had heirs; and this presumption will be good

against the commonwealth until it institutes the regular proceedings by inquest

of office, by which the fact whether the intestate did or did not die without heirs

can be ascertained; and if this fact is established in favor of the commonwealth,

it rebuts the contrary presumption, and the commonwealth by force of the

judgment, and of the statute before cited, becomes seised in law and in fact. In

such case, therefore, the court are of opinion that an inquest of office is

necessary, and that the commonwealth cannot be deemed to be seised withoutsuch inquest. Jackson v. Adams, 7 Wend. 367; Doe v. Redfern, 12 East, 96. So

far as this depends upon general principles, it seems to be a rule highly

reasonable in itself, and tends greatly to the security and regularity of titles. By



the mode of taking inquests, prescribed by the law of this commonwealth (St.

1791, c. 13, § 2), general notice is to be given of the claim of the

commonwealth, any person is admitted to traverse it, a trial by jury is to be had,

and costs are given to the prevailing party. These are highly reasonable and

equitable provisions, and it is manifestly for the quiet of the commonwealth

and the security of the citizen that they should be pursued, before the

commonwealth shall be permitted to take into its own custody and dispose of estates upon a claim which, if not doubtful, is at least not apparent.' Wilbur v.

Tobey, 16 Pick. 177, 180.

37 The constitution of Texas of 1866 (article 4, § 6) contained a provision, similar

to that of the constitution of 1845, as to the Jurisdiction of the district court over

escheats; and contained no other provision on the subject of escheats. 2 Chart.

& Const. 1789. That constitution, as was admitted by the plaintiffs, did not take

away the power of the legislature over the subject, or affect the statute of 1848or proceedings under it.

38 But it was strenuously contended that this statute was repealed by the

constitution of 1869, which—while embodying, in article 5, § 7, the provision

of the former constitutions as to the jurisdiction of the district court over

escheats, and repeating in article 4, § 20, the provision of article 5, § 23, of the

constitution of 1866, establishing the office of comptroller of public accounts,

to be elected by the qualified voters of the state, for the term of four years— also defined the comptroller's duties as follows: 'He shall superintend the fiscal

affairs of the state; give instructions to the assessors and collectors of the taxes;

settle with them for taxes; take charge of all escheated property; keep an

accurate account of all moneys paid into the treasury, and of all lands escheated

to the state; publish annually a list of delinquent assessors and collectors, and

demand of them an annual list of all taxpayers in their respective counties, to be

filed in his office; keep all the accounts of the state; audit all the claims against

the state; draw warrants upon the treasury in favor of the public creditors; and perform such other duties as may be prescribed by law.' 2 Chart. & Const.

1794, 1809, 1811.

39 This definition of the duties of the comptraller in the constitution of 1869

nearly follows the words of the statutes existing at the time of its adoption.

Pasch. Dig. arts. 3670, 5194, 5414, 5416, 5418, 5420, 5424, 5426. The

principal difference is in substituting, for the words of section 14 of the act of

1848, requiring the comptroller to 'keep just accounts of all moneys paid intothe treasury, and of all lands vested in the state, under the provisions of this

act,' the words, 'take charge of all escheated property; keep an accurate account

of all moneys paid into the treasury, and of all lands escheated to the state.'



40 As the constitution of 1869 repeats, in so many words, the provision of former

constitutions by which the district court is vested with original jurisdiction of

all causes in behalf of the state to recover escheats, and as the statute of 1849

made it the duty of the comptroller to keep accounts, not only of all moneys

paid into the treasury, but also of all lands vested in the state, under its

provisions, it is difficult to see how the insertion of the general words, 'take

charge of all escheated property,' in the definition of the eomptroller's duties inthe constitution of 1869, either increased his powers, or diminished those of the

district court, in relation to escheats.

41 The whole object of inserting in the constitution a definition of the principal

duties of the comptroller would seem to have been to fix by the fundamental

law a matter which would otherwise have been subject to the discretion of the

legislature.

42 The only doubt thrown upon this arises out of the opinion delivered in Hughes

v. State, above cited, in which Mr. Justice Moore said: 'Whether this statute had

not been repealed by the provision in the constitution of 1869, which we have

cited, may, we think, admit of serious question; but, as it is not necessary to the

determination of the present case, we are not called upon at present to

determine it. We think, however, that it is quite evident this section of the

constitution is in conflict with, and therefore revokes, the authority conferred

by the statute of 1848 upon the court to order the sale of escheated land, if such, indeed, can be held to be the proper construction of this statute, in view of

the conflicting provisions of its different sections.' 41 Tex. 18, 19.

43 But the weight of that suggestion is much lessened, if not wholly

counterbalanced, by several considerations. The decision in that case was put

upon the distinct ground that the petition and the proof were both insufficient.

In another case, decided at the same term, in which the opinion was delivered

by the same judge, as well as in an earlier case of a writ of error to review the

very judgment now pleaded, and in at least two later cases, above cited, in each

of which this proposition, if sound, would have been decisive, it was not even

mentioned. State v. Teulon, 41 Tex. 249; Brown v. State, 36 Tex. 282;

Wiederanders v. State, 64 Tex. 133; Hanna v. State, 84 Tex. 664, 19 S. W.

1008. And after the constitution of 1869 had been in force for 10 years, the

legislature, in revising and codifying the statutes of the state, re-enacted all the

material provisions of the act of 1848, both as to obtaining a judgment declaring

the land to have escheated, and as to a subsequent sale of the land by thesheriff, and clearly manifested its understanding and intention that the

provisions for such a sale did and should remain in force, by prefixing the

words, 'The proceeds of,' to the last section, which had directed 'all property



escheated in accordance with the provisions of' the act to 'remain subject to the

disposition of the state, as may hereafter be prescribed by law.' Rev. St. 1879, §

1785.

44 The plaintiffs somewhat relied on article 10, § 6, of the constitution of 1869,

which provides that 'the legislature shall not hereafter grant lands to any person

or persons, nor shall any certificates for land be sold at the land office, exceptto actual settlers upon the same, and in lots not exceeding one hundred and sixty

acres.' 2 Chart. & Const., 1816. But this evidently relates only to legislative

grants of land, and not to judicial proceedings to declare and enforce escheats.

45 Even if the suggestion in Hughes v. State, above cited, that article 4, § 20, of

the constitution of 1869, relating to the comptroller of accounts, 'is in conflict

with, and therefore revokes, the authority conferred by the statute of 1848 upon

the court to order the sale of escheated land,' should be considered as well

founded, it would affect only section 11 of the statute, authorizing the sale, and

so much of the subsequent sections as concern that subject, and would leave

unaffected the preceding sections, providing for a judgment to be rendered,

upon due allegation and proof, and after notice to all persons interested,

ascertaining and declaring that the land has escheated to the state, and vesting in

the state the title to the land. The provisions looking to a judgment vesting title

to the land in the state are distinct and severable from the provisions for a sale,

and a conversion into money, of the land after it has vested in the state; and if the latter provisions are for any reason invalid, they may be considered as

stricken out, and the former provisions stand good. Field v. Clark, 143 U. S.

649, 12 Sup. Ct. 495; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W.

485. And the judgment set up in the answer in this case, so far as it determined

that the title of the land had vested by escheat in the state, was valid, even if the

order for a sale of the land was not. Ludlow v. Ramsey, 11 Wall. 581.

46 It follows that, if the sale and conveyance by the sheriff to the defendants were

invalid, and vested no title in them, the previous judgment, ascertaining and

declaring the escheat, vested a good title in the state of Texas against all

persons claiming as heirs or devisees of the former owner; and that judgment,

although it does not prove the title to be in the defendants, proves it to be out of

the plaintiffs, and affords a complete defense to this action. Love v. Simms, 9

Wheat. 515, 524; Christy v. Scott, 14 How. 282, 292; Doswell v. De La Lanza,

20 How. 29, 33.

47 As to personal property, indeed, a judgment in rem, after notice by publication

only, might not bind persons who had no actual notice of the proceedings,

unless the thing had been first seized into the custody of the court. The Mary, 9



The judgment annexed was as follows: 'It is thereupon ordered, adjudged, and

decreed by the court that the league of land described and set forth in plaintiff's

petition as follows, to wit, [giving the description by metes and bounds], be,

and the same is hereby, declared escheated unto the state of Texas, and the title

thereto is hereby divested out of the said Walter Hamilton, his heirs andassigns, forever, and vested in the state of Texas. It is further ordered by the

court that the clerk of this court do issue a writ, directed to the sheriff of Fayette

county, Texas, commanding him, the said sheriff, to seize and sell the above-

described league of land as under execution, without appraisement, for cash, in

United States currency, on the first Tuesday in some month, after giving notice

of sale as the law directs, in lots of not less than ten nor more than forty acres,

and turn over the proceeds of said sale, after deducting therefrom the expenses

and costs of the same, to the comptroller of public accounts for the state of

Texas, taking therefor his duplicate receipt, one of which he shall file among

the papers of this cause. It is further ordered by the court, that the plaintiff, the

state of Texas, do have and recover of the interveners herein, to wit, J. G.

Cranch, 126, 144; Scott v. McNeal, 154 U. S. 34, 46, 14 Sup. Ct. 1108; Hilton

v. Guyot, 159 U. S. 113, 167, 16 Sup. Ct. 139. But it was within the power of

the legislature of Texas to provide for determining and quieting the title to real

estate within the limits of the state and within the jurisdiction of the court, after

actual notice to all known claimants, and notice by publication to all other

pesons. Phillips v. Moore, 100 U. S. 208, 212; Arndt v. Griggs, 134 U. S. 316,

10 Sup. Ct. 557; Hardy v. Beaty, 84 Tex. 562, 569, 19 S. W. 778.

48 When a man dies, the legislature is under no constitutional obligation to leave

the title to his property, real or personal, in abeyance for an indefinite period;

but it may provide for promptly ascertaining, by appropriate judicial

proceedings, who has succeeded to his estate. If such proceedings are had, after

actual notice by service of summons to all known claimants, and constructive

notice by publication to all possible claimants who are unknown, the final

determination of the right of succession, either among private persons, as in theordinary administration of estates, or between all persons and the state, as by

inquest of office or similar process to determine whether the estate has

escheated to the public, is due process of law; and a statute providing for such

proceedings and determination does not impair the obligation of any contract

contained in the grant under which the former owner held, whether that grant

was from the state or from a private person.

49 Judgment affirmed.

1



Brown, J. J. Short, William Short, and _____ Short, her costs of suit in this

behalf had and expended, for which execution may issue. It is further ordered

that the costs incurred herein by the plaintiff be taxed against the state of Texas,

and certified by the clerk of this court to the comptroller of public accounts, to

be paid by the treasurer upon the warrant of said comptroller.'

Documents

Hamilton v. Brown, 161 U.S. 256 (1896)